Opinion
No. 1:13-MJ-0336 DAD
01-22-2014
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL S. KEEVER, Defendant.
ORDER RE DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE
On November 26, 2013, after the motion was fully briefed, the court held an evidentiary hearing on the motion to suppress evidence filed in the above-entitled action on behalf of defendant Michael S. Keever. Special Assistant U.S. Attorney Michael Stanley appeared on behalf of the United States. Chief Assistant Federal Defender Linda Harter and Certified Law Student Gregory Hayes appeared on behalf of the defendant.
For the reasons set forth below, defendant Keever's motion to suppress evidence will be denied.
FACTS
Defendant Michael Keever is charged in this misdemeanor action with creating a nuisance at a federal facility, obstruction of a lobby and impeding the performance of official duties, all in violation of 40 U.S.C. § 121 and C.F.R. § 102-74.390, as well as failing to comply with official signs and directions in violation of 40 U.S.C. § 121 and C.F.R. § 102-74.385.
Those charges from a May 2, 2013 incident that took place at a Social Security Administration (SSA) Office in Stockton when defendant Keever sought entrance to the building. When Keever was told to remove all metal objects from his person before passing through the building's metal detector, he objected and began arguing with the security officers. Eventually Keever complied with the officers' instructions but continued to object and indicated that he would be filing a complaint. Thereafter, while in line awaiting service, Keever raised his cell phone and pointed it at the security screening area. When told by the security officers that he was not allowed to photograph the area, Keever again argued with them. When Keever responded to one of the officers "fuck you, asshole" he was instructed to leave the building, but he refused to do so. After initially resisting, Keever was eventually handcuffed by the security officers and seated inside the building while Federal Protective Service (FPS) Officers were contacted.
FPS Agent Skultety testified at the evidentiary hearing as follows. When Skultety and FPS Inspector Pellegrini arrived at the SSA building defendant Keever was seated in a chair handcuffed and was leaning forward, sweating profusely, shaking and appeared to be very upset. Skultety found Keever's sweating to be unusual and it appeared that Keever was possibly in pain and almost crying. The security officers on the scene told Skultety that they had put Keever on the ground in handcuffing him and that Keever had stomach staples from a recent surgery. Because he was concerned about Keever's medical and mental condition, Skultety asked Keever "are you OK?" After Keever responded that he was, Skultety asked about any medications Keever was taking and learned that there were five. Skultety was specifically concerned about Keever's stomach staples and asked whether Keever wanted an ambulance. Keever declined but, in response to inquiries about his condition, indicated that he'd had surgery, a knee replacement and suffered from a bad back. As Agent Skultety continued to ask Keever about his medical condition, Keever spontaneously stated that he'd "done a stupid thing" and had "let his mouth override his ass" - or words to that effect - in his interaction with the security officers.
Skultety estimated that his questioning of Keever regarding his condition spanned a total of only two to three minutes. Once he had determined that there were no medical issues in need of attention posed by Keever's condition, Agent Skultety immediately Mirandized him. Keever stated that he understood his rights and when asked whether he wanted to talk to Skultety about what had happened, Keever stated "yeah, sure, I've been talking to you." Thereafter Keever explained that he had become humiliated and angry as he was going through the metal detector when, after taking his belt off as ordered, his pants fell down. As a result, he had sworn at the security officers and behaved rudely. Keever also indicated that he was not sure whether he had captured any clear pictures of the security area with his cell phone. Finally, Keever apologized, stating that "this is all my fault, the guards didn't do anything wrong, this is all on me."
Defendant Keever moves to suppress his statements to Agent Skultety made before the Miranda warning was given on the grounds that those statements were elicited during a custodial interrogation without the required warning. Relying on the decisions in Missouri v. Seibert, 542 U.S. 600, 601 (2004) and United States v. Williams, 435 F.3d 1148 (9th Cir. 2006), defendant Keever moves to suppress the statements made by him to Agent Skultety after the Miranda warning was given on the grounds that those statements resulted from a "deliberate two step interrogation" which rendered the intervening Miranda warning ineffective.
ANALYSIS
For the reasons set forth below, the court concludes that defendant's motion must be denied. The court found Agent Skultety to be a very credible witness. Agent Skultety was legitimately concerned about the defendant's medical and emotional condition when he arrived on the scene. It is undisputed in this case that the handcuffed defendant Keever was in custody for purposes of the Miranda analysis when Agent Skultety first approached him. However, the court concludes that Skultety questions directed to the defendant m y prior to the giving of the Miranda warning did not constitute an interrogation because they focused solely on the defendant's condition.
The court also finds that Agent Skultety had good reason to be concerned in this regard under the circumstances as he credibly described them.
Of course, "Miranda applies only 'where a suspect in custody is subjected to interrogation.'" Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir. 2008) (quoting Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Interrogation under Miranda refers to words or actions by the police that they "should know are reasonably likely to elicit an incriminating response." Innis, 446 U.S. at 301. See also United States v. Orso, 266 F.3d 1030, 1033-34 (9th Cir.2001) (en banc) (holding that officer should have known it was reasonably likely that engaging in discussion about evidence and witnesses against the accused as well as the penalties for the crime would cause the suspect to respond);United States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir.1994) (holding that an agent's statements that the government had seized cocaine, the accused was in serious trouble, and he faced a lengthy prison sentence were not the functional equivalent of interrogation because they did not invite a response); Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir.1989) (holding that an officer's false statement that the suspect had been identified by a rape victim was not the type of comment that would encourage the accused to make some incriminating spontaneous remark).
Here, in no way Agent Skultety should have believed that his initial questions posed to defendant Keever - was Keever OK, what were his medical conditions and did he want an ambulance - were reasonably likely to elicit an incriminating response. Because the defendant's pre-warning statements were spontaneously made and not in response to any interrogation, they are not subject to suppression. See United States v. Bishop, 66 F.3d 569, 572 n. 2 (3d Cir.1995) ("[T]he district court did not commit clear error in finding that the police officer's question about Stokes' limp was part of the booking procedure designed to fulfill the government's obligation to provide medical attention if necessary."); Warriner v. Medina, Civil Action No. 11-cv-0019-CMA, 2011 WL 5984082, at *5 (D. Colo. Nov. 30, 2011) (no Miranda advisement is required where, although the defendant was in custody, officers' questioning "was directed to determining what happened and whether the victim was injured" and therefore did not constitute an interrogation); United States v. Weatherford, No. 2:11 CR 13, 2011 WL 5408441, at *12 (N.D. Ind. Nov. 8, 2011) ("[The officer] could not reasonably expect his questions about defendant's name and medical history were going to evoke an incriminating response. Therefore, although these questions were asked prior to Miranda warnings being given, any answers given by defendant after his arrest but before receiving Miranda warnings will not be suppressed."); United States v. Linderman, Crim File No 07-359 (MJD/FLN), 2008 WL 199913, at *32 (D. Minn. Jan. 22, 2008) (concluding that questions by officer's pertaining to a defendant's "physical and mental health" were not intended to elicit incriminating statements and therefore did not constitute interrogation in violation of Miranda).
Finally, because there was no interrogation of the defendant in this case prior to the giving of a proper Miranda advisement, defendant Keever's initial statements to Agent Skultety were spontaneous. Therefore, the decisions in Missouri v. Seibert and United States v. Williams are not applicable as to the defendant Keever's incriminating statements made after the otherwise unchallenged subsequent Miranda advisement. See Oregon v. Elstad, 470 U.S. 298, 318 (1985) (holding that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." ) Here, there simply was no use of a two-step interrogation strategy - where there is a deliberate withholding of the Miranda warning until a confession is obtained followed by a Miranda warning and a repetition of the already given confession - by Agent Skultety in this case. See Williams, 435 F.3d at 1157-58 (concluding that suppression of evidence under the holding in Seibert is limited to those cases in which a deliberate two-step interrogation strategy is employed by law enforcement and it is found under the objective facts and circumstances that the midstream Miranda warning did not effectively apprise the suspect of his rights); see also United States v. Smith, No. CR 11-01903-TUC-RCC(DTF), 2013 WL 4177805, at *9 (D. Az. Aug. 14, 2013) ("Dr. Smith did not interrogate Smith, thus there was no two-step interrogation."); United States v. Badalamenti, No. 03:11-CR-0269-HZ, 2012 WL 5830393, at *5 (D. Or. Nov. 16, 2012) ("Despite what Defendant may have perceived, there was no two-step interrogation strategy because Findley did not interrogate Defendant . . . . If there is no deliberate two-step interrogation, then under Elstad, Defendant is capable of waiving his Miranda rights if the prewarning statements were the result of uncoercive questioning.); United States v. King, No. C 10-0455 WHA, 2010 WL 4226728, at *7 (N.D. Cal. Oct. 21, 2010) (suppression not required under Seibert and Williams where no two-step interrogation occurred).
See Williams, 435 F.3d at 1154.
Accordingly, defendant's motion to suppress his post-Miranda advisement statements is also properly denied.
CONCLUSION
For the reasons set forth above defendant's motion to suppress evidence (Doc. No. 3) is DENIED. The matter currently remains set for bench trial on February 12, 2014 at 9:00 a.m. in Courtroom No. 27.
If this scheduled trial date is no longer appropriate, counsel are directed to confer, consult with Courtroom Deputy Pete Buzo and submit a stipulation with a proposed order re-setting the matter to an agreed upon date.
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IT IS SO ORDERED.
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE